Tucker v. Makowski

• Decision Date: 25 August 1989
• Docket Number: No. 87-1701,87-1701
• Parties: Darrell Ray TUCKER, Petitioner-Appellant, v. John MAKOWSKI; Robert H. Henry, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 877

883 F.2d 877

Darrell Ray TUCKER, Petitioner-Appellant, v. John MAKOWSKI; Robert H. Henry, Attorney General Respondents-Appellees.

No. 87-1701.

United States Court of Appeals Tenth Circuit.

Aug. 25, 1989.

Darrell Ray Tucker, pro se.

Robert H. Henry, Atty. Gen., Timothy S. Gilpin, Asst. Atty. Gen., Oklahoma City, Okl., for respondents-appellees.

Before McKAY and ANDERSON, Circuit Judges, and BROWN, ^* District Judge.

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Petitioner appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He challenges his Oklahoma convictions for robbery and kidnapping. Petitioner alleges his convictions arose from the same criminal transaction, and that the state violated double jeopardy in prosecuting him at successive trials for the two crimes. ¹

Petitioner limits his legal argument to a contention that the overlapping evidence presented at his successive trials violated his right not to be placed twice in jeopardy, relying principally on Supreme Court precedent and the decision by the Oklahoma Court of Appeals in Chaney v. State, 612 P.2d 269, 281 (Okla.Crim.App.1980), cert. denied, 450 U.S. 1025, 101 S.Ct. 1731, 68 L.Ed.2d 219 (1981). Petitioner's factual allegations, however, actually raise three principal legal issues: (1) whether petitioner's successive trials for robbery and kidnapping, arising from the same criminal transaction, violated double jeopardy; (2) whether the introduction of "other crimes" evidence at each of petitioner's trials violated his due process right to a fair trial; and (3) whether the decision by the Oklahoma Court of Criminal Appeals not to apply remedial state precedent to petitioner violated any federal constitutional right. In light of petitioner's pro se status, we will address each of these three issues in turn. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972).

I. DOUBLE JEOPARDY

Petitioner argues that his successive trials for robbery and kidnapping subjected him to double jeopardy. Of course, double jeopardy would not bar petitioner's first trial for robbery. Thus, petitioner may only challenge his kidnapping conviction on double jeopardy grounds.

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Since the crime of robbery contains elements distinct from the crime of kidnapping, see Tucker v. State, 481 P.2d 167, 168 (Okla.Crim.App.1971), the district court was correct that petitioner's argument fails under the traditional Blockburger test.

On appeal, petitioner relies in part on Jordan v. Virginia, 653 F.2d 870, 873 (4th Cir.1980), to argue that the Blockburger test does not apply where successive prosecutions are involved. ² We disagree with the Fourth Circuit to the extent that the court has suggested that the Blockburger test does not ordinarily apply to double jeopardy challenges to successive prosecutions. Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228 (1980); Brown v. Ohio, 432 U.S. 161 at 166, 97 S.Ct. 2221 at 2225, 53 L.Ed.2d 187 (1977); see also United States v. Puckett, 692 F.2d 663, 667 n. 4 (10th Cir.), cert. denied, 459 U.S. 1091, 103 S.Ct. 579, 74 L.Ed.2d 939 (1982) and 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 497 (1983). We do agree, however, that successive prosecutions implicate "the protection against re-trial itself." Jordan, 653 F.2d at 873. This component of double jeopardy "insures that having once 'run the gauntlet' of criminal trial to judgment either of conviction or acquittal, a person shall not be required to run essentially the same gauntlet again." Id.; see also United States v. Combs, 634 F.2d 1295, 1297 (10th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 304 (1981); United States v. Huffman, 595 F.2d 551, 559 (10th Cir.1979) (McKay, J., dissenting).

Because this important interest is at stake, the Blockburger test's examination of the requisite statutory elements must be made "from the vantage point of the particular case before the court." Lee v. Probate Court of Davidson County, 807 F.2d 512, 514 (6th Cir.1986) (citing Vitale, 447 U.S. 410, 100 S.Ct. 2260). Thus in Vitale, in trying to determine whether a defendant's conviction for failure to reduce speed barred his subsequent conviction for involuntary manslaughter, the Supreme Court focused on the proof required to sustain the involuntary manslaughter conviction. The Court remanded to the Illinois Supreme Court to determine whether, under the facts of the case, the only way the prosecutor could prove the elements of involuntary manslaughter was through proof of failure to reduce speed. If so, double jeopardy barred the subsequent prosecution for involuntary manslaughter. Vitale, 447 U.S. at 417, 100 S.Ct. at 2265-66. See also Brown, 432 U.S. at 168, 97 S.Ct. at 2226-27 (defendant convicted of joyriding could not subsequently be tried for greater offense of auto theft); Harris v. Oklahoma, 433 U.S. 682, 682, 97 S.Ct. at 2912, 2913, 53 L.Ed.2d 1054 (1977) (defendant convicted of felony murder could not subsequently be tried for the underlying felony of armed robbery because, although the two statutes might pass the Blockburger test, in the particular circumstances of the case, proof of armed robbery was indispensable to proof of felony murder).

Contrary to appellant's contention, substantial overlap in the evidence presented in the two trials does not, by itself, create a double jeopardy problem. The Supreme Court in Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975), clarified this point as follows: "[T]he Court's application of the [double jeopardy] test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." (Emphasis added). See also Rubino v. Lynaugh, 845 F.2d 1266, 1269-70 (5th Cir.1988) (issue not whether overlapping evidence used, but whether conviction for second crime could have been had without the assistance of the proof required to convict for the first crime).

Here, petitioner was accused of robbing a drugstore at gunpoint. After being given narcotics and money, petitioner forced the clerk to accompany him from the store. He then forced the clerk into the back seat of the car. He eventually released the clerk. Tucker, 481 P.2d at 168. Petitioner was charged with armed robbery and kidnapping.

Under Oklahoma law, the prosecution could have proven each crime without introducing evidence of the other. In his direct criminal appeal of his kidnapping conviction, petitioner argued that the state could not "obtain separate punishments under separate statutes for a single transaction involving a single criminal objective and intent, act, or course of conduct." Id. He contended that his previous conviction for armed robbery resulted in a double jeopardy bar against his kidnapping trial because the state was carving "two crimes out of the same course of conduct." Id.

The Oklahoma Court of Criminal Appeals rejected this argument.

We are of the opinion that the Armed Robbery was completed when the defendant left the store. The elements of Armed Robbery and those of Kidnapping are quite dissimilar. The proof required to prove the Armed Robbery and the proof required to prove the Kidnapping are completely different.

Id. In light of the deference accorded state courts in determining the elements and required proof under their own criminal statutes, we conclude that in the circumstances before us, the "proof necessary to prove the statutory elements of each offense" was different. Cf. Hoag v. New Jersey, 356 U.S. 464, 467, 78 S.Ct. 829, 832, 2 L.Ed.2d 913 (1958) (due process did not prevent state from construing robberies of separate victims occurring at same time as separate offenses). ³

Although the problem of overlapping evidence has been addressed, the issue remains whether successive trials arising from admittedly separate crimes, but stemming from the same criminal transaction, nevertheless violated petitioner's right to due process in the form of his right to be free of prosecutorial attempt " 'to wear the accused out by a multitude of cases with accumulated trials.' " Id. (quoting Palko v. Connecticut, 302 U.S. 319, 328, 58 S.Ct. 149, 153, 82 L.Ed. 288 (1937)). In Hoag, New Jersey had determined that each of four robberies, though taking place on the same occasion, was a separate offense. ⁴ Deferring to the state's interpretation of what could define a separate crime in New Jersey, the Supreme Court concluded there was no double jeopardy problem of double punishment for the same crime. Id.

But even if it was constitutionally permissible for New Jersey to punish petitioner for each of the four robberies as separate offenses, it does not necessarily follow that the state was free to prosecute him for each robbery at a different trial. The question is whether this case involved an attempt "to wear the accused out by a multitude of cases with accumulated trials."

Id. (quoting Palko, 302 U.S. at 328, 58 S.Ct. at 153).

The Court held that the fourteenth amendment does not always forbid "[s]tates to prosecute different offenses at consecutive trials even though they arise out of the same occurrence. The question in any given case is...